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Poster: Brackney Date: Nov 12, 2009 5:24pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I've been trying to understand your point of view on these issues through a long and weighty thread by now. For me, the reason is that I want to understand clearly whether a not-for-profit web site -- one that I am interested in constructing essentially for the personal entertainment I'd get through the process of the building -- can utilize some of the music found in sources like the UCSB Cylinders Library, this Internet Archive, and yes, YouTube, wisely and selectively, without violating copyrights and/or statutes.

From my perspective, this thread began with your statement, "I got a rights claim on Youtube for using a 1920 recording of a baroque classical piece I got off IA." From my own experiences browsing YouTube, this suggests that a piece of music that you synchronized with your own YouTube video was still under copyright according to someone who contacted YouTube, and YouTube responded by silencing your video.

Of course, you bring up a very special case. Google profits by selling advertising on YouTube, so must take responsibility whenever such a copyright challenge has merit. Synchronizing music to video has a certain special meaning to the courts, too, as a positive act. Therefore, music on your video might get much more scrutiny from copyright holders or perhaps under statutory law it might gain more attention than it would if it were simply stored on where no one profits by it.

In my experience, people who produce videos for YouTube are proud of their works and quite defensive of the validity of their use even of recordings that are clearly under copyright. And, yet, you have taken a very opposite emotional stance. Instead of being defensive of your art on YouTube, you are actively promoting an extremist viewpoint and legal position in support of the rights of copyright holders in the courts.

Your views on copyrights are so strong that you have sought out a forum such as this one on which to express your ideas, and you are seemingly quite willing to exaggerate on the subject. There is something about your arguments that belies the original premise of your post: "I got a rights claim on Youtube for using a 1920 recording of a baroque classical piece I got off IA."

So, frankly, throughout this post I have come to distrust most of what you've written based on my revised estimation of your original level of truthfulness.

You see, if you had actually experienced what you've told to this forum with your YouTube video, you'd be more likely to lead with a very precise identification of the offending baroque classical piece. You'd be asking the forum for advice on your next project -- "What musical pieces would be less likely to violate copyrights and more likely to be approved on YouTube?"

And then there's the content of your ongoing arguements to attract my distrust. If you were actually interested in your art on YouTube, you'd perhaps have selected different legal precedents to quote here. Music from the baroque classical period typically pre-dates all common law and statutes dealing with copyrights, and there are absolutely no successors in interest remaining to complain to YouTube regarding such musical pieces.

The details of your arguements extend specific court cases into sweeping generalities, such as an unusual case of 3 British recordings from the 1930's and a unique legal decision that only has meaning in New York but nowhere else being exaggerated into your ideal way of regarding all copyright issues for recorded music.

No, I'm sorry, I'm going to terminate my part in this thread because I feel I am dealing with a sophist.

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Poster: Video-Cellar Date: Nov 13, 2009 12:26am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I am a strong advocate of the public domain. It is how I make my living. So I don't like to see it limited. But I am also a realist and, unfortunately, I can find little strong evidence that sound recordings (particularly those made between 1909 and Feb 15 1972) are in the public domain in the US. If you look at my forum history you will see that I am a regular contributor to "Feature Films" and "Classic TV" providing information on copyright status for films and TV. I tend to take the conservative view when making a judgement on a film's status. If your judgement carries weight with people, and means the difference between uploading and not uploading a film, you are potentially dealing with person's livelihood, should their upload prompt a rights owner to pursue legal action against them. My view on sound recordings copyright is the conservative view NOT the extremist view.

I replied to the initial post in this thread because I had had a similar experience on the same website with the same complainant, but with a recording containing an underlying work without the potential to have mechanical copyright protection.

The piece I used on Youtube was a Victor recording of a piece by Handel. I am not a classical enthusiast so I am not sure what the piece was called. I only use classical music as a means of providing a soundtrack to any silent shorts I upload to Youtube. I subsequently discarded the sound recording.

As I live in Australia, where the compositional right in music for works created 1954 or before was life + 50 years and the copyright in the sound recording copyright lasted 50 years from recording or 50 years from publication if released within 50 years from recording, my use of the recording was perfectly legal in my home jurisdiction. However, in using Youtube, I have agreed to abide by the United States Copyright status of works when selecting material for upload.

The claim was from Sony. I decided to do some research before assessing whether or not to lodge a counter-notice. I discovered that Sony is the successor in ownership for the sound recording through their merger with Bertlesmann, the successors of the RCA/Victor Recording Company.

Google/Youtube take action on all copyright claims, meritous or otherwise. This was an automated content match to the sound recording. As Sony has a content deal with Youtube, the video was not silenced until I removed the audio. Subsequent to the audio claim, a claim on the video content was made by another party. The second claim was unfounded and has become the subject of my own counterclaim.
Evidence of this can be seen here.

When I inquired with Youtube, I found that the issue was with the sound recording not with the synchronisation of the musical composition. No one would argue that the composition is covered by any limited term copyright anywhere in the world. My research led me to believe that the claim on the sound recording was genuine and that if a counter-claim led to legal action in Youtube's jurisdiction I would probably be found to be in violation of a number of statutes and common law principles. The legal advice I received agreed particularly because my use of Youtube is commercial - promoting my business.

Before commencing work on a website including historical recordings I would recommend reading the report for the National Recording Preservation Board "Protection for Pre-1972 Sound Recordings under State Law and Its Impact on Use by Nonprofit Institutions: A 10-State Analysis" available here. It goes through the legal principles and statutes, their development and scope, provides an analysis of 10 of the key states regarding sound recording rights and the potential "fair use" defenses for non-profit use of "orphaned" works. This is one of a series of reports on the issue which are also useful.

This post was modified by Video-Cellar on 2009-11-13 08:01:54

This post was modified by Video-Cellar on 2009-11-13 08:26:44

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Poster: Brackney Date: Nov 14, 2009 10:19am
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

OK, so I'm going to suspend disbelief for the moment and try to put the Internet Archive into context for you so that you can understand the *uniquely*American* aspect of the organization, and this will contrast with any possible cosmopolitan view that I hold and not represent my true viewpoint. Mind you, I'm only a visitor to the web site and not a founder nor a patron, and I am not a lawyer, but instead I am a voter – this means that I am one of a class that is technically in charge of all American lawyers, though few lawyers are listening.

Americans take pride in defending their human rights and the rights of others. Never mind that this tendency grew from what is now an ancient tyranny -- it is a very real and palpable element within the American psyche. Were our resolve to defend human rights seriously weaker, then all of Europe would now be slaves of Germany and all of Australia would be enslaved to Japan. Americans volunteered for the defense of the world against tyranny and gave their lives in that defense.

But Americans also recognize that sometimes the inalienable rights of one man impinge upon the inalienable rights of another man. Although the final blows of World War II probably saved 5-10 million Japanese lives by finally convincing their government that their cause was futile and no longer worth shedding blood over, nonetheless to the people of Hiroshima and Nagasaki (here, among many others) we still bow our heads in a certain shame.

To an American, the issue of copyrights is an issue of the inalienable rights of one man in conflict against the inalienable rights of another. When you speak to one group of men about it you get one view, and from another group of men you'll hear the opposite view. And, frankly, a man who moves between the two groups frequently adjusts his views for the context in which they are to be interpreted.

As for recorded music, the vast majority of Americans fit directly into a group of men that I will label "Napster". This group of men recognizes that while Michael Jackson was in court being prosecuted for scandalous conduct in the presence of children, he was collecting money for his defense from licensing fees that Paul McCartney of the Beatles had to pay in order to perform his own songs on tour – though according to many with reasoned viewpoints the Beatles copyrights should have expired long before.

The typical copyright term that was approved of by states of the United States (thus by voters) was between 14 and 28 years. These were once echoed in our federal copyright laws. To most of us living in the United States who have ever considered the issue, any extension of the terms of a copyright beyond the 14 and 28 year terms of our early laws represents an abuse of our legislative system by big business. There is also an element of animosity in the view of the American voter that pressure to extend copyright terms also came from the *even*more*corrupt* foreign powers who worked to extend copyright terms through treaties that amounted to subversion.

At the same time, we revere our rock stars, big and small, and we want to protect their interests, though these sometimes can only be described as "big business". Here, rock stars should be understood to represent all of those in the limelight -- even if the only thing in the limelight is a pen name.

The American tradition of states regulating copyrights locally was, before 1900, an extremely good system for its time. The uneven regulations of the day actually served very well to adjust to the changing landscape of the localities with local knowledge about how best to balance the rights of one man vs. those of another.

The United States Senate and House of Representatives stepped in when it seemed that a more uniform approach was required, because of the changing nature of commerce, but they have consistently seriously botched the job of lawmaking that they were entrusted with in regard to copyright laws. I guess it could also be accurately said that they proved that they were corrupt repeatedly. They wrote bad law, as I’m sure you’ve observed. And, unfortunately, there's no going back on these abuses that have occurred in the past.

What you are going to find with the founders of any "grassroots" forum such as this one on is a more humanistic viewpoint, one representative of what an American would call the majority viewpoint, to copyrights. We are struggling to defend the vestiges of control by states against the ill-conceived and corrupt approach of the US legislatures wherever possible, and this struggle will continue until voter's rights are reinstated by abandonment of the hugely abusive terms of copyright that are being forced on us by the big business that buys and sells influence in our legislature.

I use the term “Napster” to represent the group of Americans who share this viewpoint even though I and the vast majority of Americans who share this view never visited the internet’s Napster site and would not have. Napster took a misstep and allowed, shall we say, “post 1978 recordings” to be exchanged by their members, thus both falling out of the legal sphere and, in the views of those who still are in the majority, out of the moral sphere. But had Napster limited its activity to the Jazz era, the Swing era, the pre-1978 Rock and Roll era and earlier, then their activities would have been unchallenged, though the RIAA might have tried to shut down the internet at some state borders. Nonetheless, Napster represented an extremist view that planted a flag that still stands in clear view and is still influential, though their leadership has now joined forces with the corrupt big business interests.

The world is becoming increasingly cosmopolitan. From state’s rights of the past to the cosmopolitan future it is important that the forces of transition always keep in mind the mistakes of the past. American federal copyright law is a huge fiasco, with grossly inflated terms of copyright, but sadly the international situation is largely seriously worse. The rate of change of life is increasing in our world, I would predict that copyright law will increasingly move back to something more like the original common law meaning of copyright – the right of first publication. Copyright terms will predictably gradually narrow in the future, as will the terms of patents, and the types of works eligible for copyright and inventions eligible for patents will be likewise narrowed, as issues of the public interest are increasingly brought to the forefront and the abusiveness of our present system becomes more clear.

I’ve extended the suspension of disbelief as a courtesy to you; I take you to be an Australian who is no expert on the legal requirements that Google (YouTube) must adhere to, according to your own statements (I am no expert, either). Even among experts in New York and U.S federal copyright law, and frankly especially among them, the court decision that you’ve chosen to quote is highly controversial and among those most likely to be overturned. There is a backlash against them being expressed in other judicial districts and among lawmakers, as there is against the general condition of copyright and patent law in the United States.

And, note especially, because you are an Australian resident, these are frankly not laws that apply to you. They apply to Google, certainly, but only because Google has offices selling advertising in New York. If not, then they would not have silenced your video, because Sony would then have to pursue their interests with Google in California, where case law has taken a slightly different approach and where Sony is unlikely to prevail. So work with Google’s limitations as best you can, and adhere to Australian law, but don’t admonish those of us in the United States to adhere to your conservative (I think you really mean “safe”) interpretation of American law that is foreign to you. Voters in the US are on the forefront of battle forces engaged against the forces of corruption on large numbers of issues important to us, and therefore we are less likely than you to be pleased with the “safe” approach. I hope you will understand.

Google’s administration understands their embattled position very well. I am happy as an observer to say that, with YouTube, Google has often taken a moral stance that seems to agree with the American voter against the forces of corruption. YouTube, of and by itself, is the internet’s successor to Napster, and works to extend the definition of “Fair Use” outward from the embattled core of “non-profit educational institutions” to encompass derivative work as personal art that is not for profit and that contains more than tiny slices of the parent work. It does so by demonstrating directly to the holders of copyrights that an expanded definition of fair use would work in their behalf rather than against them, for example often increasing record sales rather than damaging their business.

Now, I am going to return to a more skeptical mode of living, so please make any point of view that you express in response to me more consistent than those that are contained earlier in this thread.

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Poster: Video-Cellar Date: Nov 14, 2009 7:32pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

I believe I have been consistant in my views throughout this thread. That why after this post, I'm leaving the thread. I feel I am going around in circles with a person who denies the complexity of the issue. In short you're boring me and probably anyone else who has had the misfortune of reading this thread.

I have a long list of copyright research on Feature_Films to deal with. I prefer my time spent on IA to be purposeful. There are a few things you covered in that I thought I needed to address.

I do not believe that there is anything wrong with my method of identifying items that are held in the public domain. That is that the item is supposed copyright until proven public domain. Yes this is a "safe" view, but with the criminal and civil penalties for copyright infringement the way they are, and the potential for a simple mistake on line to become a massive infringement, it is irresponsible, if not naive, to look at things from the opposite point of view.

For a work to be "in the public domain" it has to be free from ALL copyright, intellectual property and related protections, statutory or common law. For that reason alone pre-1978 sound recordings are not "in the public domain" in the US - simply by virtue of the myriad state and federal laws protecting them.

I understand that you are viewing this as a user of copyright works. My views come from being both a user and creator of copyright works. As a person who has assigned copyrights in the past, I have nowhere near as much of an ethical problem with McCartney paying MJJ and Sony for the right to use his own songs (he ultimately gets royalties) than I do with Macca collecting on copyright catalogs that have never generated a cent in royalties for the writers and composers. But I understand that this is the system that you had to work with at that time.

Napster would not have been on safe ground simply by sticking to pre-78 recordings. You can test it in five easy steps:
1. Build a page based in USA.
2. Post the some recordings on it. Be daring, post Elvis Presley's first album on there. This is PD just about everywhere in the world. So why shouldn't it be in the US.
3. Wait for the DMCA.
4. Lodge a counter notice citing their PD status in the US.
5. Go to court and see what happens.

The fundamental issue that you seem to totally misunderstand is that copyright in a musical composition and lyrics and the copyright in sound recordings operate exclusively of each other. Publishing one does not necessarily publish the other. One entering the public domain does not place the other in the public domain. Compulsory licensing of mechanical rights in compositions and lyrics is not a free license. Royalties must be paid to a collection agency per copy or performance, whether for profit or not for profit.

I am a long term Internet Archive contributer and user. I understand its not UNIQUELY American ideals and purposes. This site is used and contributed to by individuals from many different countries. "Universal access to human knowledge" is, dare I say it, a fairly universal mission. Freedom of information and the public domain are not uniquely American ideas. They existed before America and will exist after America.

I am a trained historian, but I took law early in my undergraduate career and studied some copyright law. I understand that while I am bound by the copyright laws of Australia, I am also, under the DMCA provisions of our countries' FTA, bound to many aspects of US law regarding the things I post on US sites. I wouldn't post Universal's 1931 Frankenstein movie (PD in Australia) on a US site and expect to just get away with it. Would I?

Copyright in the United States, prior to 1978, had never been an issue of moral or human rights. An "inalienable" does not have to be applied for on a national register. If US copyright had been founded on the individual's human right to limited exclusive control of their creative endeavours, the system would not have been founded on what is generally known in copyright as "neighbouring" rights. That is, fixed term protection devoid of "moral rights". For example, in most copyright systems internationally, original creative works such as literature, musical composition, lyrics, drama and artwork are offered copyright (protection for the life of the author plus a certain period of time after death), while other works, such as films, sound recordings and typographical arrangements are offered fixed terms of protection. These "neighbouring" rights, much like the US copyright system before joining Berne, do not include moral or authorial rights and are essentially a limited-term right of exclusive exploitation for works deemed to be of commerce not art.

The United States was formed as a conglomeration of smaller corporations (states) primarily for commercial reasons. My studies of US history have highlighted the cause of free enterprise many times over the cause of freedom as an impetus for the 13 colonies secession from the British Empire. It is difficult for me to agree with your ideas about where proprietary rights are headed. As long as the US remains a corporation with the veneer of democracy, I strongly believe the world will see a openly gay female atheist US President before they see your proposed copyright system. With the copyright, political and corporate system as it is in the US today it is, unfortunately, unlikely that all copyright works published in 1923 will enter the public domain at the end of 2018.

I am unsure exactly where the US involvement in the Pacific War has to do with your argument on copyright. Am I supposed to feel indebted to you as a US citizen and accept your naive interpretation of the issues? Your view appears to be that copyright coverage for sound recordings is piecemeal and therefore non-existent. Or is the reference to WWII evidence of some form of blind nationalistic self-importance.

The view that the US saved Australia from Japanese dominion, (or Europe from German for that matter) is short sighted, simplistic, and frankly disrespectful to the 1000s of Australian men who successfully fought the Japanese in New Guinea and the Pacific, my grandfather included, for the nearly three years before the US entered the war.

The only historical guarantee of US non-involvement in the Pacific is that the Japanese people would not have been the subject of two unnecessary live tests of nuclear weapons. With the Russian Forces under Zukov in a position to take Japan with limited casualties (just as they had the Japanese holdings in mainland Asia), it was only the US' need to gain Japan as a post war base, that can be offered as genuine strategy behind those bombs. Granted the Japanese surrendered to MacArthur, but they were so weakened by the Russian advance through Asia that there is no guarantee that the US was always going to take that victory.

It is indicative of the US' post war self-importance that the role of Russia in WWII is not as widely recognised as it should be. Hitler killed himself when Russians entered the building, while the US forces had only advanced as far as the Elbe. The German Army surrendered to Montgomery, not Patton or Eisenhower. They were fighting a war with Britain and Russia and surrendering to Russian forces would have meant immediate reparations for their "sins".

The problem for me with this things is I can never sort genuine discussion and curiosity from the the time wasters.

I now feel strongly that you're a common garden variety Troll. Good luck with the rest of your life. I hope your views on music and recording copyright don't turn out to be too expensive for you in your website endeavour.

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Poster: ABLEBAKER Date: Nov 12, 2009 8:33pm
Forum: 78rpm Subject: Re: Copyright exists -- Free 20s Jazz Collection

The big print gives it to you and the little print takes it away. Trouble is: there's more little print than there is big print!